Conservatives ask court to dismiss election case

Party submits application to dismiss request for judicial review in wake of robocalls allegations

Pierre-Andre (7), left, and Ernest (5) Auclair attend a demonstration in Montreal, Sunday, March 11, 2012, protesting the 'Robocall', election fraud scandal. An application calling for the federal court to review some of the results of last year's election was filed too late and contains no specific allegations, documents filed by Conservative MPs say. (Graham Hughes/Canadian Press)

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Conservative MPs are asking the Federal Court to dismiss an application to review the federal election results in seven ridings.

Seven MPs have submitted documents arguing the applications for judicial review were filed too late and don't contain specific allegations that would demand the election results be overturned.

The court documents are in response to a legal action supported by the Council of Canadians that asked the court to review the election result in seven ridings after allegations of voter suppression surfaced in the midst of an Elections Canada investigation into fraudulent robocalls in Guelph, Ont. The calls in Guelph redirected voters to the wrong polling station.

The documents were submitted to the court Friday and released by the Council of Canadians on Tuesday.

The challenge to the election result in the seven federal ridings is based on election laws that allow any voter eligible to cast a ballot in his or her riding to contest election results on the grounds that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.

The applicants, nine Canadians in the seven ridings at issue, say phone calls misdirected voters and changed the election result, and that the federal court should overturn the results in those ridings.

The results of the May 2, 2011 election are being challenged in the following ridings:

Don Valley East in Ontario, won by Conservative MP Joe Daniel by 870 votes.

Nipissing-Timiskaming in Ontario, won by Conservative MP Jay Aspin by 18 votes.

Saskatoon-Rosetown-Biggar in Saskatchewan, won by Conservative Kelly Block by 538 votes.

Vancouver Island North in B.C., won by Conservative John Duncan by 1,827 votes.

Winnipeg South Centre in Manitoba, won by Conservative MP Joyce Bateman by 722 votes.

Elmwood-Transcona in Manitoba, won by Conservative MP Lawrence Toet by 300 votes.

Yukon won by Conservative Ryan Leef by 132 votes.

Last week, a judge threw out Conservative MP Ted Opitz's election result in Etobicoke Centre after a challenge by Liberal candidate Borys Wrzesnewskyj. Opitz has eight days from the decision to appeal to the Supreme Court of Canada. The judge threw out dozens of ballots after Wrzesnewskyj argued there were voting irregularities.

'Frivolous and vexatious'

Documents submitted to the court by the seven Conservative MPs say the application to review the election results is frivolous and vexatious.

In six out of seven cases, the applicants can't point to anyone who didn't vote because of "irregularities, fraud or corrupt or illegal practices," the Conservatives say in their responses.

In another application, only the applicant says she didn't vote because of a phone call giving her the wrong polling location.

The applications further don't disclose "any allegation that 'irregularities, fraud or corrupt or illegal practices' affected the election result," the Conservative MPs say.

"An election represents the democratically expressed will of the electorate, should not lightly be overturned, and further, cannot be overturned where the application does not ever attempt to demonstrate that each element" of the act applies, the submissions say.

The Conservative MPs also argue that the applicants missed the cut-off date for their submissions. The law provides for a 30-day window after a voter learns of an alleged irregularity or from when the election result is published in the Canada Gazette, a publication that details federal regulations.

A lawyer for the applicants says they didn't suspect the calls until news broke about the Elections Canada investigation in Guelph.

"They did not suspect that calls misdirecting them on election day were part of an orchestrated campaign to suppress the vote until late March and early April 2012, when extensive media coverage brought these facts to light," Steven Shrybman said in a statement. "The applications were filed within 30 days following those disclosures."

The applicants will respond formally to the motions on May 24, 2012, Shrybman said.